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Stage 3: Consideration of prosecution approval

Stage 3.1: Seek approval

This stage applies only to cases where the investigator recommends prosecution. Please see the Investigation procedure for actions required in cases where prosecution is not recommended.

Investigating Inspector / Litigation Officer

Submit completed report to Approval Officer as per Stage 2.2.

If prosecution costs are likely to be in excess of £50,000 then raise this with Division Finance Officer.

Note: In Scotland, where an incident results in a fatality, the final decision on enforcement action will not be taken until after the fatal accident inquiry.

Stage 3.2 Consider approving: England and Wales

Approval officer (AO)

Prior to commencement of the Approval process:

If the Senior Manager is making the final prosecution decision, the whole investigation file, including the unused material should be made available to the Senior Manager.

If the case is likely to be referred for Independent Legal Oversight post approval, contact Legal Advisors Office as soon as possible to enable relevant discussions and legal advice to commence at an early stage.

When approving cases:

Senior Manager (B1 or above)

The Senior  Manager should:

Performance standard

The investigation and prosecution report should usually be completed and an approval decision recorded:

Stage 3.3: After the decision

Approval officer

When a decision has been made:.

If the incident resulted in a fatality:

For guidance on taking a prosecution before Coroner’s Inquest (see OC165/10):

If the case appears to meet the criteria for independent legal oversight, seek confirmation from Legal Adviser’s Office that they will accept it.

In FOD and HID:

Where a prosecution was approved:

If a prosecution was not approved:

For situations where there is sufficient change of circumstances to prompt a review of the prosecution decision, record the outcome of the review in either the combined Investigation / Prosecution Report or in Approval Officer’s Considerations and Decision: Action taken Post Approval section of IMPACT.

Simple Cautions

If after applying the evidential and public interest tests, etc., prosecution would normally be approved but there are exceptional circumstances relating to the proposed defendant that outweigh the general public interest factors, you may, consider whether a ‘Simple Caution’ should be offered to the defendant as an appropriate and alternative response to prosecution. In such cases:

Litigation Officer

On COIN:

For cases where prosecution is proposed, and where they don’t yet exist(1), open prosecution case(s), inputting the breach details  and the decision  date on the Prosecutions page (FOD and  HID).

Where prosecution case(s) have already been opened, amend the details accordingly.

(1) When early prosecution case related work is required for which HSE can seek to recover costs via the prosecution bill of costs (see stage 4.4), LOs should open the prosecution case at that point to allow time to be recorded against the prosecution case (see Stage 2.1)  

Now go to Stage 4: Prepare for court.

Stage 3.4: Consider approving: Scotland

Approval officer

When considering approval, ensure the prosecution report:

If the case is approved:

 If the case relates to a fatal accident:

After the prosecution papers have been sent to the Prosecutor Fiscal:

On COIN:

When the court proceedings are completed:

If the decision is not to submit the report to Procurator Fiscal:

On COIN:

Next: Stage 4: Prepare for court

Stage 3.5: Decision not to prosecute following a fatal incident

Approval officer

Appendix 1: Criteria which may compromise the independence of an Approval Officer

Approval Officers must be fair, independent and objective when considering a prosecution decision and not be affected or influenced by improper or undue pressure from any source. Approval Officers should therefore not be closely involved in directing, or be taking part in the investigation process. However, they can, and should be involved, in advising the investigating inspector on lines of enquiry. Neither does the normal management role of Band 1 or Band 2 staff in monitoring the investigation work of inspectors compromise their ability to make the prosecution decision.

Approvals Officers should however consider the following criteria before approving prosecutions, if one or more of the criteria apply, consideration should be giving to appointing another AO.

Criteria

Appendix 2: Table of criteria for deciding whether to notify a Senior Line Manager about a Case either prior to, or post Approval

The risks to be considered by the Senior  Manager may be in relation to the decision to take, not to take, or losing a prosecution.

Separate criteria for considering whether a case requires Independent Legal Oversight (ILO) is provided by OC168/11.

Criteria for notifying Senior Managers Examples
Approval Stage  
Evidential Stage Factors (Code for Crown Prosecutors)  
Sensitive cases where prosecution is not proposed as there isn’t sufficient evidence to provide a realistic prospect of conviction. Investigations into accidents resulting in significant major injuries and/or multiple victims, fatalities or incidents where there is significant public and/or media interest 
Public Interest Stage Factors (Code for Crown Prosecutors)  
Sensitive cases which meet the evidential stage of the Full Code Test and public interest stage factors are significant in any prosecution decision.   (i) The suspect was under 18 at the time of the offence.
(ii) Sources of information need protecting or there may be issues of national security e.g. complainants, MOD related investigations.
(iii) Multiple duty holder cases when prosecution is restricted to the main participants to avoid excessively long and complex proceedings, or other suspects are required as witnesses.  

General Factors

Factors which are not considered to be in the public interest but are issues that would need to be taken into consideration by an Approval Officer in relation to taking, not taking, or losing a case.   

 
Business Risk Factors  (i) Could result in challenges to health and safety legislation, guidance, benchmarks or HSE’s expertise (technical, scientific etc.).
(ii) Could have a wider political impact.
External Impact Factors  (i) Could result in Commercial restrictions or trading embargoes.
(ii) Have wider public interest considerations.
(iii) Lead to loss of livelihood (individual or communal) or civil liberties.
(iv) Could conflict with wider industrial demands.
(v) Specific difficulties for duty holders to comply with law.

Appendix 3: Table of who to notify in Specific and Non-Specific Cases about a Prosecution Decision

Introduction

The Table below identifies:

Case Notification to: Additional specific notification requirement AFTER approval decision
Specific Cases    
Emergency Services (involving the operational arm of the Police, Fire or Ambulance Service) Divisional Director Deputy CE (Ops).
Head of Directorate.
Public Services Sector (SIM 07/2003/30) ? 
Major Incident Person appointed by Deputy CE (Ops) Deputy CE (Ops).
Head of relevant Directorate.
Member(s) of the Major Incident Investigation Board.
Cases with significant media interest (Escalate to appropriate level depending on level of media interest and sensitivity of case) Band 1 Band 1
Divisional Director Divisional Director
Person appointed by Deputy CE (Ops) Person appointed by Deputy CE (Ops)
  Press Office 
Section 14 (HSWA) (i.e. resulting from a HSE Board directed investigation). Person appointed by Deputy CE (Ops) Deputy CE (Ops).
Head of relevant Directorate.
Member(s) of the Major Incident Investigation Board.
In Scotland, cases where Solemn Procedure is recommended Band 1  
Proceedings against offshore installations or within 500m of an offshore installation Director of Public Prosecutions 6 (Petroleum Act 1998, Part II 12(3) [5]) HID Director.
Crown Censures Band 1 HoOps (FOD and HID) Head of Directorate.
HQ of Crown body department concerned. (SIM 07/2001/34[6])
Non-Specific Cases
Cases where there is significant business risk to HSE and wider or extensive external impact on large duty holders (with several premises), industry sectors at national or international level.    Head of Operations or in cases with high levels of risk and external imapct: Head of Division
Others that may need to be made aware of a prosecution decision 
(i) Sector colleagues who may have an interest for: statistical analysis, technical interest, or to brief external contacts.
(ii) Senior Civil Servants or a Minister, particularly, in high profile cases which may require their response to questions about the investigation and/or prosecution.
(iii) Other enforcing authorities who may have be involved in the investigation or maintain an interest in the case.  
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